My Note, Defending the Faithful, explores these group harms and how prevailing constitutional interpretations do not let judges account for them when reviewing challenges to conduct-based counterterrorism profiling. However, the enigmatic Free Exercise Clause doctrine of “hybrid situations,” announced in Employment Division v. Smith, offers a way to help reshape judicial intuitions about the interests at stake. In my Note, I propose that Muslim plaintiffs can plead “hybrid” claims in order to encourage judicial solicitude for how profiling that burdens their religiously motivated exercise of secular constitutional rights can also threaten to subordinate their religious community as a whole.

“Cultural Profiling” and Group Harm

Tasked with the inherently uncertain enterprise of catching terrorists before they act, counterterrorism policymakers sometimes single out suspects by using vastly overinclusive proxies for terrorist association. Post-September 11 federal dragnets used national origin as one such proxy, targeting thousands of immigrants from Muslim-majority countries without ever charging any with terrorism-related crimes. The Department of Homeland Security (DHS), to its credit, has since shifted away from scrutinizing passive group status and towards targeting conduct, such as by employing “behavior detection officers” at mass transportation hubs. Yet some conduct-based profiling, like a new airport screening policy of giving extra scrutiny to certain passenger headwear, could still disparately burden cultural minorities by singling out their affirmative expressions of racial, religious, or ethnic identity.

One prototypical example of what I call “cultural profiling” was recently upheld as constitutional by the U.S. Court of Appeals for the Second Circuit in Tabbaa v. Chertoff. In December 2004, DHS implemented a terrorist processing protocol that led to the detentions of dozens of passport-carrying American citizens at the Canadian border, solely because they were returning from the third-annual “Reviving the Islamic Spirit” conference, held at the Toronto Skydome and attended by over 13,000 people. Although officials had no individualized suspicions about any of the travelers, these validly documented citizens—Muslim men, women, and children—faced indefinite detention and forced exile unless they submitted to being searched, interrogated, fingerprinted, and photographed.

Several detainees sued DHS, which successfully defended the dragnet as motivated not by animus but by intelligence suggesting that terrorists might try to use any one of several contemporaneous North American Islamic conferences “as a cover to meet and exchange information, documents, money, and ideas about acts of terrorism.” During the plaintiffs’ appeal, the government further insisted the policy was not “profiling” because even a “non-Muslim CNN anchorman” would have been detained, and because the policy would have been enacted even if the event had been “an airline pilots association meeting.”

This misses the larger point. In a “war on terror” against individuals about whom little is known except that they are probably Muslim, and where intelligence reports may often speak only in broad strokes, conduct-based counterterrorism profiles will likely target activities that are commonly expressive of Muslim identity. As a result, Muslims as a group—and not anchormen or airline pilots—will be the ones to bear the brunt of government scrutiny for a long time to come. Against this backdrop of systemic suspicion, it comes as little comfort for untold numbers of Muslims to know that they are presumed to be terrorists not because of invidious discrimination, but because the government deems it worthwhile to risk ensnaring the innocent.

Cultural profiling in the counterterrorism context can yield two types of indirect group harms: raising the price of expressing Muslim identity and lowering the value of that identity in the eyes of non-Muslims. First, the greater the costs to individuals mislabeled as potential terrorists, the more likely that fear of similar treatment could chill Muslims’ willingness to undertake the activities that proclaim membership in their religious community, such as wearing hijab, attending congregational worship services, or providing religiously mandated alms. Second, the very act of targeting these “identity performances” could ratify anti-Muslim animus by sending the stigmatic message that it is legitimate and worthwhile to presume a relationship between terrorism and an expression of Muslim identity. For example, posters to conservative websites reacted to news of the Tabbaa detentions by presuming the accuracy of the government’s intelligence and interpreting the decision to target Islamic conference attendance as justifying their belief that Muslims are inherently threatening.

A Doctrinal Gap

Existing constitutional doctrines offer little shelter from these group harms. Intelligence-driven cultural profiling does not implicate the Equal Protection Clause as it is currently interpreted. Equal protection doctrine disfavors the government’s use of certain group-based classifications, but does not frown upon good-faith government scrutiny of traits or activities strongly correlated with membership in those groups. And although profiling that targets speech or associative conduct—as in Tabbaa—would certainly implicate the Free Speech Clause, the doctrine’s balancing tests do not account for a speaker’s identity or her reasons for exercising her expressive rights. As a result, judicial analyses of free speech challenges to cultural profiling would ignore the unique stigmatization of, for example, Muslims’ efforts to participate in civic discourse and combat prejudice against their religious community.

And since the Supreme Court’s 1990 decision in Employment Division v. Smith, the Free Exercise Clause has been read to similarly reject special solicitude for religious identity performances. Smith held that plaintiffs can only invoke the protections of the Free Exercise Clause, on its own, against policies that specifically target religiously motivated activity. But even in those situations where courts will review government action under Smith’s strict scrutiny standard, they do so only to guard against policymakers’ impure motives, without attending to the relationship between individual exercise and a community of believers.

As a result, Muslim plaintiffs who challenge the disparate effects of cultural profiling—or any other overinclusive counterterrorism policy—would remain distinctly disadvantaged even if courts applied strict scrutiny balancing tests under either the Free Exercise Clause or Free Speech Clause alone. Judges readily recognize the government’s compelling interest in preventing terrorism and are especially inclined to defer to Executive Branch agents’ investigatory expertise, resource allocation decisions, and interpretation of their legislative mandates. But on the other side of the scale, courts tend to examine plaintiffs’ claims in a vacuum, stripped of social context. This approach invites the belittling of burdens upon individual plaintiffs as merely an “extra hassle,” with no discussion of the externalized costs to the wider Muslim community.

Towards a Theory of “Hybrid Situations”

Nonetheless, Muslim plaintiffs may yet be able to voice a theory of group harm when challenging some cultural profiles. During the 1940s, the Supreme Court frequently intervened to protect the expressive freedoms of Jehovah’s Witnesses, a highly visible religious minority whose poor public image became even worse amidst wartime hysteria. This group-protective approach towards religious minorities reached its peak in Wisconsin v. Yoder, where the Court exempted Amish parents from a compulsory education law that eroded their ability to propagate their distinctive social culture, because it found the Amish community just as worthy of judicial protection as individual Amish beliefs and practices. Although the Court’s holding in Smith nominally abandoned these group-protective readings of the Free Exercise Clause, the Court did not invalidate any of these precedents.

Instead, the Court carved out an exception to Smith’s general rule, so that neutral and generally applicable measures that implicate both the Free Exercise Clause and a second constitutional protection could remain subject to strict scrutiny as a “hybrid situation.” Smith characterized Yoder as a case where the substantive due process right of parental control over a child’s upbringing was “reinforced” by the free exercise claim, and characterized several of the Witness cases as a hybrid of religious freedom and free speech concerns. Many commentators argue that “hybrid situations” are merely an artful rationalization to preserve Yoder’s validity, and some courts view Smith’s carve-out for hybrid claims as mere dicta. Nonetheless, both Smith’s general rule and its hybrid situation exception remain good law.

Taking Smith at face value, the best reading of the precedents it distinguished away into the “hybrid” box suggests that hybrid situations should heighten judicial attention to the group harms that can result from governmental burdens upon religiously motivated exercises of secular constitutional rights. Thus a plaintiff could not simply invoke religious freedom and freedom of association, or religious freedom and the parental right to direct a child’s education; she must also plead religious motivation for her exercise of the secular “companion” right. This would alert the court to the prospect that the plaintiff’s co-religionists may be similarly moved to exercise freedoms that are valuable to all Americans regardless of faith, and that their exercise would be similarly burdened if the challenged policy is allowed to stand.

So even where strict scrutiny might normally be available under the Free Exercise Clause alone, my theory of hybrid claims would give plaintiffs and judges an additional doctrinal hook upon which to hang explicit concerns for group harm and social context. There is of course, as Bernadette Meyler suggests, a danger in presuming any religious collectivity to be a monolithic entity, because this might overlook “the problems that concentrating upon this collectivity may pose for sub-groups within it.” My theory mitigates this danger by encouraging judges to perceive a group only after the plaintiff asserts that the group exists in the form of people similarly burdened because of their shared religious motivation for constitutional exercise.

My focus on religious motivation is not based on any moral claim about religious virtue. Indeed, as Frederick Mark Gedicks observes, “it is difficult to argue today that religious interests are inherently more worthy of protection than morally comparable secular interests.” Rather, my argument is premised upon minority vulnerability and an essentially anthropological claim: the Free Exercise Clause’s text presupposes the existence of vulnerable groups defined by beliefs that suffuse their members’ lives in a way that many secular interests do not (excepting perhaps Communism, or maybe radical environmentalism). Accordingly, religious minorities are more likely to have their constitutional exercise burdened in more walks of life than would other people who, despite passionate commitments to political or other causes, have not comprehensively organized their daily lives around those causes.

R. Richard Banks argues that since group harm is an elusive concept, judicial modesty counsels against making intricate empirical and normative judgments about when such harm is enough to invalidate a challenged policy. For this reason, what I propose is not a precise metric but a revived constitutional narrative. In the national security context, hybrid claims can help some plaintiffs offer judges a normative account of community burdens and stigmatization that can more robustly challenge the executive’s counterterrorism calculus. The push and pull of administrative concerns and unconscious cognitive biases that overemphasize easily recalled risks can lead counterterrorism officials to accentuate their institutional objectives while discounting the costs imposed upon the innocent people targeted by a profile as “false positives.” Hybrid claims can push these countervailing concerns of group harm, however amorphous, into the foreground of the judicial decision-making alchemy, where they may (somewhat) rein in the deference given to the imperfectly rational judgments of even the most well-intentioned policymakers.

Conclusion

Not all religiously motivated activity would present a hybrid situation. And hybrid claims may not necessarily—if ever—succeed in invalidating a cultural profiling policy. But pleading them may force an open and honest judicial reckoning with the potential costs of such security measures. From the purely utilitarian standpoint of preventing terrorism, using a weakly corroborative proxy might indeed be more “rational” than not using any profile at all. But a failure to consider profiling’s wider consequences runs counter to our civic culture’s regard for equal rights and religious freedom. And as even the U.S. Code makes clear, these are values that our counterterrorism officials are no less duty-bound to protect.

Murad Hussain is a 2007 graduate of Yale Law School and an associate at Arnold & Porter LLP. His Note, Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, appeared in Issue 5 of Volume 117 of The Yale Law Journal. His previous contribution to The Yale Law Journal Pocket Part, The “Bong” Show: Viewing Frederick’s Publicity Stunt Through Kuhlmeier’s Lens, offered a proposal for the U.S. Supreme Court’s then-pending disposition of the First Amendment student speech case Morse v. Frederick.